Freedom of Movement and the Normative Value of the Right to Work in the United Kingdom Post-Brexit

A new legal order has arisen in the United Kingdom (UK) following that country’s withdrawal from the European Union (EU). Nowhere are these changes more evident than in the complex rules that have emerged in the fields of freedom of movement and the right to work. In evaluating the new legal landscape, this article has two overarching aims. The first is to assess the level of protection granted to the right to work and associated free movement rights within EU and UK law, including the terms of the EU-UK Withdrawal Agreement. The second aim is to examine the extent to which those right to work rules are reflective of the status of the right to work as a fundamental social right. Three separate categories of rights-holder are relevant for this discussion, namely: (1) those with EU or UK citizenship status (‘national workers’); (2) ‘former’ national workers i.e. those EU and UK citizens whose right to work is protected by the Withdrawal Agreement and who thereby enjoy a hybrid status; and (3) Third Country National (TCNs) who have moved specifically for the purpose of obtaining lawful employment (‘migrant workers’). The purpose is to examine the manner in which freedom of movement and the right to work of (former) national, and migrant workers are conceptualised under EU (withdrawal) law and UK law. It is argued that UK right to work rules are derived from a patchwork of immigration law, with the complexity and differing coverage of this framework serving to undermine the right to work as a fundamental right. This can be contrasted with the level of protection granted to the right to work within EU law, including its clear connection to fundamental rights concepts. Brexit unmoors the right to work from EU free movement rules, thereby undermining the normative value of that right, while exacerbating flaws in domestic rules governing access to employment. Our understanding of the right to work as a fundamental right also draws on Marshall’s rights-based conception of ‘social citizenship’, which can transcend legal distinctions derived from political or identity-based notions of citizenship, and which can bridge—albeit without completely overcoming—the distinction between national and migrant workers. It is contended that a clearer articulation of the right to move and work within the UK, coupled with a social (citizenship) conception of those rights, would go some way to ensuring recognition of the normative value of the right to work as a fundamental right post-Brexit.